Indigenous chiefs vow to continue lawsuit in New BrunswickAuthor of the article: John Chilibeck • Local Journalism Initiative reporterPublished May 28, 2026 • Last updated May 29, 2026 • 5 minute readThe Supreme Court of Canada has dismissed the Wolastoqey Nation’s application for leave to appeal. Photo by John Chilibeck/Brunswick NewsThe Supreme Court of Canada has refused to hear the Wolastoqey Nation’s appeal of a lower-court ruling that prevents them from getting back privately held land in their massive title claim for more than half of New Brunswick’s territory.THIS CONTENT IS RESERVED FOR SUBSCRIBERSSubscribe now to read the latest news in your city and across Canada.Unlimited online access to articles from across Canada with one account.Get exclusive access to the e-Edition, an electronic replica of the print edition that you can share, download and comment on.Enjoy insights and behind-the-scenes analysis from our award-winning journalists.Support local journalism and the next generation of journalists.SUBSCRIBE TO UNLOCK MORE ARTICLESSubscribe now to read the latest news in your city and across Canada.Unlimited online access to articles from across Canada with one account.Get exclusive access to the e-Edition, an electronic replica of the print edition that you can share, download and comment on.Enjoy insights and behind-the-scenes analysis from our award-winning journalists.Support local journalism and the next generation of journalists.REGISTER / SIGN IN TO UNLOCK MORE ARTICLESCreate an account or sign in to keep reading.Access articles from across Canada with one account.Enjoy additional articles per month.Get email updates from your favourite journalists.THIS ARTICLE IS FREE TO READ REGISTER TO UNLOCK.Create an account or sign in to continue with your reading experience.Access articles from across Canada with one accountShare your thoughts and join the conversation in the commentsEnjoy additional articles per monthGet email updates from your favourite authorsArticle contentAs is tradition, the nation’s highest court did not provide reasons for its decision on Thursday not to grant leave to appeal in the case.Joseph Robertson, a retired justice of the Court of Appeal of New Brunswick, told Brunswick News people shouldn’t assume that the dismissal meant the Supreme Court agreed with the lower court’s ruling.But he said there were at least two plausible and interrelated reasons why the top court might have dismissed the application.The retired judge pointed out that neither the province nor Ottawa were parties to the pivotal case.“If leave had been granted, who would argue on behalf of private landowners in New Brunswick?” he wrote in an email to Brunswick News. “That is to say, who would argue on behalf of all those who were not parties to the underlying action? As there is no obvious answer to that question, the Supreme Court of Canada has sidestepped a fundamental issue, and wisely so.“Frankly, it would be embarrassing to have a case involving constitutionally entrenched Aboriginal rights being heard in the Supreme Court of Canada without the mandatory participation of the provincial and federal governments.”By signing up you consent to receive the above newsletter from Postmedia Network Inc.Article contentArticle contentFurthermore, Robertson said, by allowing the decision of the Court of Appeal to stand, there was no disruption to the real estate markets in New Brunswick, unlike last year’s Cowichan decision in British Columbia, where the trial judge held that a declaration of Aboriginal title may be granted over privately owned lands.That case sent shock waves throughout British Columbia, with Premier David Eby vowing to appeal it to his province’s highest court.“In short, the Supreme Court’s dismissal of the leave application preserves the status quo when it comes to private landowners in our province,” said Robertson, who still calls Fredericton home.The Indigenous chiefs who represent the six Wolastoqey communities that dot the St. John River Valley expressed disappointment Thursday but vowed to persevere.“The fight for our homeland will continue,” said Chief Patricia Bernard of Madawaska, in a news release.The Wolastoqey Nation’s title claim was filed in 2020 and substantially amended in 2021 to include large, private landowners, most of them big timber firms, seeking legal recognition of Aboriginal title to the traditional, ancestral homelands of the Wolastoqey on New Brunswick’s western side.Article contentMost of the Crown, or public land, is gone in this area, and the First Nations chiefs want the land back that they said was stolen and handed out to European settlers, violating treaties signed between the British Crown and Indigenous leaders some 300 years ago.“Our ancestors never surrendered our lands and waters,” Chief Bernard said. “The Peace and Friendship Treaties signed with the British Crown in the 1700s were treaties of peace and alliance – not land surrender or cession. Our title has not been extinguished. Being denied leave does not mean that the Supreme Court of Canada agrees with the New Brunswick Court of Appeal decision.”A 2024 lower court ruling confirmed that Aboriginal title could exist on privately held land but said it would be the responsibility of Ottawa and the province to return some private land by negotiated agreements or, if negotiations fail, court orders.The timber companies, including Acadian Timber and J.D. Irving, Limited, fought hard to overturn the decision.Article contentThe New Brunswick Court of Appeal ruled in the firms’ favour, stating that declarations of Aboriginal title can only be issued in relation to Crown land, limiting remedies on private industrial land to financial compensation or damages from the government.“Canadians expect that the Supreme Court will eventually need to clarify the law on whether Aboriginal title can be recognized in relation to privately held lands,” said Bernard, who is also a lawyer.“Until this clarification, the Wolastoqey Nation must be consulted on all Crown decisions impacting lands and waters within its territory. We will continue to advance our claim, assert our rights and title, and pursue all available paths open to us. We will announce our plans for the next steps of our claim when information is ready to share.”The Supreme Court of Canada only hears 50 to 60 cases a year, a small number that can be frustrating for applicants seeking appeals, said Nicole O’Byrne, a law professor at the University of New Brunswick.Article contentShe said it’s possible the court is waiting to see what happens in the Cowichan case before weighing in on Aboriginal title.In 2005, O’Byrne pointed out, the Supreme Court heard two cases together – Nova Scotia versus Marshall, and New Brunswick versus Bernard. Both cases involved Mi’kmaq people who had been charged in their respective provinces for illegal logging. The top court ruled that the Peace and Friendship Treaties did not grant them the right to commercial logging on public land.“There’s no way to know ahead of time whether they’ll do that in this case,” O’Byrne said. “But in the past, when they’ve got similar things kind of coming up from different courts across the country, sometimes they put them together.”She added that the title claims could take years, even decades, to make their way through the courts or for agreements to be signed.The Tsilhqot’in case in British Columbia made history in 2014 because it was the first time the Supreme Court declared Aboriginal title for a specific area. The land in that case was mostly Crown or public land, and private land owners weren’t affected.Article content“There’s just been more and more complexity laid on top of these issues. So now cases like Tsilhqot’in take years, and $50 million or $60 million in legal fees.”Robertson, meanwhile, said he was convinced the Court of Appeal’s decision in the Wolastoqey Nation’s case would not be the last word on the issue of Aboriginal title over private lands.“Inevitably, the Supreme Court will have to provide Canadians with a definitive answer to a solitary question – whether declarations of Aboriginal title may embrace privately held lands. Those who believe that the Cowichan trial decision will eventually provide the Supreme Court of Canada with the opportunity to address that question will be disappointed – the case will take too many years before it reaches the British Columbia Court of Appeal let alone the Supreme Court of Canada.”Article content
Supreme Court refuses to hear Wolastoqey Nation title claim appeal
